EXHIBIT 10.21
AMENDMENT AND RESTATEMENT OF
2006 NEW EMPLOYEE STOCK OPTION PLAN OF
HERLEY INDUSTRIES, INC.
BACKGROUND
On August 1, 2006, the Board of
Directors ("Board") of Herley Industries,
Inc., a Delaware corporation (the
"Company"), adopted the 2006 New Employee
Stock Option Plan (the "Plan"); and
On June 8, 2007, the Board approved an
amendment to the Plan increasing the
number of shares reserved for issuance under the Plan
from 250,000 to 500,000;
and
On July 22, 2009, the
Board approved a further amendment to the
Plan
increasing from 500,000 to 600,000 the number of
shares reserved for issuance
under the Plan, and providing for the direct issuance
of restricted shares to
participants in the Plan.
NOW, THEREFORE, in consideration of the
Premises, the Company hereby amends
and restates the Plan in its entirety to give effect to the
amendments referred
to above and to make additional conforming changes as follows:
HERLEY INDUSTRIES, INC.
2006 New Employee Stock Option Plan
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(as amended through July 22, 2009)
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SECTION 1. GENERAL PROVISION
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1.1 Name and General Purpose
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The name of this plan is the
Herley Industries, Inc. 2006 New
Employee
Stock Option Plan (hereinafter called the "Plan"). The Plan
is intended to be a
broadly-based incentive plan which
enables Herley Industries, Inc.
(the
"Company") and its subsidiaries and
affiliates to foster and promote the
interests of the Company by attracting new
employees to the Company who will
contribute to the Company's success by their ability, ingenuity and
industry, to
enable such employees to participate in the long-term success
and growth of the
Company by giving them a proprietary
interest in the Company and to provide
incentive compensation opportunities
competitive with those of competing
corporations.
1.2 Definitions
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a. "Affiliate" means any
person or entity controlled by or under common
control with the Company, by virtue
of the ownership of voting
securities,
by contract or otherwise.
b. "Board" means the Board of
Directors of the Company.
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c. "Change in Control"
means a change of control of the Company, or in
any person
directly or indirectly controlling the Company, which shall
mean:
(a) a
change in control as such term
is presently defined in
Regulation 240.12b-(2) under the Securities Exchange
Act of 1934, as
amended (the
"Exchange Act"); or
(b) if any
"person" (as such term is used in Section 13(d) and
14(d)
of the
Exchange Act) other than the Company or any "person" who on the
date of
this Agreement is a director or
officer of the Company,
becomes
the "beneficial owner" (as defined in Rule 13(d)-3
under the
Exchange Act) directly or indirectly, of
securities of the Company
representing more than fifty (50%) or more of the voting
power of the
Company's
then outstanding securities; or
(c) if
during any period of two (2) consecutive years during the
term
of
this Plan, individuals who at the
beginning of such period
constitute
the Board of Directors, cease for any reason to
constitute
at least a
majority thereof.
d. "Committee" means
the Committee referred to in Section 1.4 of
the
Plan.
e. "Common Stock" means
shares of the Common Stock, par value $.10 per
share, of
the Company.
f. "Company" means Herley
Industries, Inc., a corporation organized under
the laws of
the State of Delaware (or any successor corporation).
g. "Fair Market Value"
means the market price of the Common Stock on the
National
Association of Securities
Dealers Automated Quotation
("NASDAQ") system on the date of the grant or on
any other date on
which
the Common Stock is to be valued hereunder.
If no sale shall
have been
reported on the NASDAQ on such date, Fair Market Value shall
be
determined by the Committee.
h. "New Employee"
means a person who has not been an employee of
the
Company or any subsidiary
within 24 months of the date
of
determination.
i. "Non-Employee Director"
shall have the meaning set forth in Rule 16(b)
(3) promulgated by the
Securities and Exchange
Commission
("Commission").
j. "Option" means any option
to purchase Common Stock under Section 2 of
the
Plan.
k. "Option Agreement" means
the option agreement described in Section 2.4
of the
Plan.
l. "Optionee
Participant" means any new employee of
the Company, a
Subsidiary
or an Affiliate whose options are issued in connection with
his or
her employment and who is selected
by the Committee to
participate
in the Plan.
m. "Participent" means any
Option Participant or Shares Participant.
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n. "Restricted Shares"
and "Restricted Period" shall have meanings set
forth in
Section 3 of the Plan.
o. "Share
Participant" means any new employee
of the Company, a
Subsidiary or an Affiliate who
received Restricted Shares in
connection with his or her employment and
who is selected by the
Committee or
Board to participate in the Plan.
p. "Subsidiary" means
any corporation in which the Company
possesses
directly or
indirectly 50% or more of the combined voting power of all
classes of
stock of such corporation.
q. "Total
Disability" means accidental bodily injury or sickness
which
wholly
and continuously disables a Participant.
The Committee or
Board,
whose decisions shall be final, shall make a determination
of
Total
Disability.
1.3 Structure of The Plan
---------------------
The Plan shall be divided into two (2)
separate equity programs:
(i) the Option Grant
Program under which eligible persons
("Optionee
Participants") may, at the discretion of the Board, be granted
options
to purchase
shares of common stock; and
(ii) the Restricted Shares
Issuance Program under which eligible persons
("Share Participants") may, at the discretion of the Board,
be issued
shares
of common stock subject to the
restrictions set forth in
Section 3.2
of the Plan ("Restricted Shares").
The provisions of Articles One shall
apply to both equity programs under
the Plan and shall accordingly govern the
interests of all persons under the
Plan.
The Board or Committee shall have
full authority to determine, (i) with
respect to the grants made under the Option
Grant Program, which eligible
persons are to receive the option grants, the time or times
when each option is
to become exercisable, the vesting schedule and
events (if any) applicable to
the option shares and the maximum
term for which the option is to remain
outstanding, and (ii) with respect to stock issuances made
under the Restricted
Shares Issuance Program, which
eligible persons are to receive such stock
issuances, the time or times when those issuances are to be
made, the number of
shares to be issued to each Participant, and the vesting schedule
and events (if
any) applicable to the issued shares.
The Board or Committee shall have the
absolute discretion either to grant
options in accordance with the Option
Grant Program or to issue stock in
accordance with the Restricted Shares Issuance Program.
1.4 Administration of the Plan
--------------------------
The Plan shall be administered by
the Board or by the Committee appointed
by the Board consisting of two or more members of the Board all of
whom shall be
Non-Employee Directors. The Committee shall serve at
the pleasure of the Board
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and shall have such powers as the Board may, from time to time,
confer upon it.
Subject to this Section 1.4,
the Committee or Board, as the case may be,
shall have sole and complete authority to adopt,
alter, amend or revoke such
administrative rules, guidelines and practices
governing the operation of the
Plan as it shall, from time to time, deem advisable, and to
interpret the terms
and provisions of the Plan.
The Committee or Board,
as the case may be, shall keep minutes of its
meetings and of action taken by it
without a meeting. A majority of
the
Committee or Board shall constitute a quorum, and the acts of
a majority of the
members present at any meeting at which a quorum is present, or
acts approved in
writing by all of the members of the Committee or Board without a
meeting, shall
constitute the acts of the Committee.
1.5 Eligibility
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Options and Restricted Shares
may be granted only to new employees of the
Company or a Subsidiary or Affiliate whose options are issued in
connection with
his or her employment as a new employee.
1.6 Shares
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The aggregate number of shares
reserved for issuance pursuant to the Plan
shall be 600,000 shares of Common Stock, or
the number and kind of shares of
stock or other securities which shall be substituted for such
shares or to which
such shares shall be adjusted as provided in Section 1.6.
Such number of shares may be set aside out
of the authorized but unissued
shares of Common Stock or out of issued shares of Common
Stock acquired for and
held in the Treasury of the Company, not reserved for any other
purpose. Shares
subject to, but not sold or issued under, any Option terminating or
expiring for
any reason prior to its exercise in full will again
be available for Options
thereafter granted during the balance of the term of the Plan.
1.7 Adjustments Due to Stock Splits, Mergers, Consolidation,
Etc.
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If, at any time, the
Company shall take any action,
whether by stock
dividend, stock split, combination of shares or
otherwise, which results in a
proportionate increase or decrease
